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2011 DIGILAW 744 (GAU)

Standerly R. Lyngkhoi v. State of Meghalaya

2011-09-07

ANIMA HAZARIKA

body2011
JUDGMENT Anima Hazarika, J. 1. Heard Mr. K. Khan, learned counsel appearing for the petitioner. Also heard Mr. B Bhattacharjee, learned State counsel appearing for the respondents. The instant writ petition has been filed by the petitioner, inter alia with the following prayers;-- (a) For a direction to respondent No. 3 to quash and set aside the impugned letter dated 27.6.2008, (b) To allow the petitioner to set up a business of Electronic Jackpot Parlour at Nongstoin, West Khasi Hills, the said business being not a gambling; (c) Directing respondent Nos. 2 and 3 to consider the representation of the petitioner dated 27.3.2008 in terms of order dated 20.6.2008 passed in W.P. (C) 146(SH) of 2008 and extend the exemption of the operation, of the Meghalaya Prevention of Gambling Act, 1970 at Nongstoin Market, West Khasi Hills, Meghalaya; (d) Directing the respondent No. 4 to grant licence to the petitioner in accordance with law for running the business of Electronic Jackpot Parlor at Nongstoin Market, West Khasi Hills, Meghalaya; and (e) Directing the respondent No. 1 to frame policy/guideline for exercising the power under Section 13(2) of the Meghalaya Prevention of Gambling Act, 1970. 2. In order to determine as to whether the directions as sought for can be granted, it would be appropriate to place on record the pleadings of the parties in a nutshell. The petitioner herein has earlier approached this Court by filing a writ petition being W.P.(C) No. 146(SH) of 2008 seeking the same relief as in the instant writ petition viz., to allow him to run the business of Electronic Jackpot Parlour at Nongstoin Market, West Khasi Hills District exempting the application of Prevention of Gambling Act, 1970 as has been exempted by Notification dated Shillong the 3rd October, 1996 from operation of the aforesaid Act when played in any premises situated in the area comprised within the Police Bazar Ward of Shillong Municipality subject to certain conditions specified in the above notification. 3. 3. The said writ petition came up for consideration on 20.6.2008 whereby and whereunder the Court directed the Home (Police) Department to consider the representation dated 25.03.2008 submitted by the petitioner within a period of two months from the date of receipt of the order, making it clear that if the representation is not considered within the aforesaid period or if the petitioner is not satisfied with the decision of the Government, the petitioner shall be at liberty to approach this Court afresh. 4. Copy of the order dated 20.6.2008 passed by this Court on WP(C) No. 146(SH) 2008, along with the representation dated 25.3.2008 submitted by the petitioner to the Home (Police) Department did not evoke any response from the Under Secretary, Government of Meghalaya representing the Home (Police) Department, but the Officer on Special Duty, Home (Police) Department vide letter dated 27.6.2008, informed the petitioner regretting its inability to accede to extend permission for installation of jackpot machine at Nongstoin in West Khasi Hills, District, Meghalaya on the ground that Nongstoin does not fall under the area exempted for operation of jackpot machine, more so, when unlike other districts, West Khasi District is one of the least developed district in the State where per capita income is very low, inasmuch as, literacy in the district is also low and therefore, considering the economic condition of the district and the impact of a jackpot machine will have on the livelihood of the public, the prayer for exemption of operation as it did vide Government Notification dated 03.10.1996 has been rejected and hence the writ petition. 5. Opening the argument Mr. Khan, learned counsel for the petitioner would contend that the Meghalaya Prevention of Gambling Act, 1970 (hereinafter to be referred to as 'the Act' only) has been exempted from its operation by Notification issued by the Government of Meghalaya in various pockets of different districts in the State of Meghalaya for setting up of Electronic Jackpot business and its operation is exempted in East Khasi Hills for running a business of Electronic Jackpot Machine in any premises situated within the Police Bazar Ward of Shillong Municipality subject to certain conditions specified therein, whereas, the same exemption has not been extended to West Khasi Hills District which amounts to violation of Article 19(1)(g)and Article 14 of the Constitution of India and hence require interference under judicial review. 6. Mr. 6. Mr. Khan, learned counsel would further submit that the rejection order of exemption of the provision of the Act on the ground of per capita income, vis-a-vis the literacy rate in the West Garo Hills at Nongstoin, though it is a district headquarter do not hold good because the Government cannot discriminate the West Khasi Hills Districts from the purview of exemption of the Act, whereas other districts were exempted and on this ground alone the impugned order dated 27.6.2008 passed by the Officer on Special Duty, Home (Police) Department is required to be interfered with being violative of Article 14 of the Constitution of India and therefore contended that his representation dated 27.03.2008 seeking exemption of the Act be considered afresh in terms of order dated 20.06.2008 passed in WP(C) No. 146(SH) of 2008. 7. An elaborate affidavit-in-opposition has been filed by the respondent Nos. 1 to 4 stating the reasons for rejecting the exemption of the provision of the Act as sought for. Mr. Bhattacharjee, learned counsel appearing for the State respondents and its other officials contends that the question of accordance of exemption of the operation of the Act in West Khasi Hills districts/areas is purely a policy matter of the Government of Meghalaya which would not come under judicial review and the entire matter is misconceived and the writ petition is liable to be dismissed. Mr. Bhattacharjee has also produced the relevant record of the case. 8. The learned State counsel has further contended that earlier by order dated 16.07.2007 petitioner's request for exemption of the Act in West Khasi Hills Districts was rejected and subsequently on the same ground his representations was turned down recording the reasons for its inability to concede the prayer of the petitioner for exemption of the provision of the Act holding the situation in West Khasi Hills Districts is not conducive for the exemption of the said Act, moreso, when the Government has earlier rejected the similar application filed by one Smti Ridalin Thabah of Ladweitang for exemption of the provisions of the Act at Nongstoin market vide letter dated 04.01.2008, the judicial review in the instant writ petition do not call for. 9. 9. The contesting parties have relied on the decisions rendered by the Hon'ble Apex Court to substantiate their submissions including the interpretation of the word 'discretion' wherein it requires to be exercised viz.; (i) AIR 1967 SC 1427 , S.G. Jaisinghani v. Union of India & Ors. (ii) AIR 1968 SC 825 , State of Andhra Pradesh v. K. Satyanarayana; (iii) AIR 1978 SC 851 , Mohinder Singh Gill & Anr. v. Chief Election Commissioner, New Delhi & Ors.; (iv) AIR 1974 SC 543 , State of Punjab & Anr. v. Khan Chand; (v) AIR 1991 SC 101 , Delhi Transport Corporation v. D.T.C. Mazdoor Congress & Ors.; (vi) AIR 1996 SC 1153 , Dr. K.R. Lakshmanan v. State of Tamil Nadu & Anr.; (vii) (2001) 3 SCC 635 , Ugar Sugar Works Ltd. v. Delhi Administration & Ors.; (viii) (2007) 4 SCC 747, Directorate of Film Festivals & Ors. v. Gaurav Ashwin Jain & Ors.; (ix) (2008) 5 SCC 550 , State of Uttar Pradesh & Ors. v. Chaudhari Ran Beer Singh & Anr. 10. Considered the arguments advanced by the contesting parties alongwith the pleaded facts. However, a glance of Section 13 of the Meghalaya Prevention of Gambling Act, 1970 would be relevant for deciding the case. The relevant portion of Section 13 is quoted hereunder- 13. Exemptions-- (1) Nothing in this Act shall apply to any game of more skill wherever played (2) Without prejudice to the provisions contained in sub-section (1), the Government of Meghalaya may, by notification, exempt any game or sport from the operation of this Act in respect of which it is satisfied that having regard to its nature the skill involved and the customs connected therewith in vogue in the community. Nothing connected with such game or sport is likely to encourage gambling or otherwise defeat the objects of this Act and any such notification may be issued either in relation to the whole of the territories to which this Act extends or to any part thereof, and may also specify the circumstances in which and the conditions subject to which such game or sport may be played or undertaken. (3)........................... 11. (3)........................... 11. Admittedly the exemption of the provisions of the Act has been turned down not only in case of the petitioner but also to one Smti Ridalin Thabah of Ladweitang, Nongstoin who sought for permission to install Electronic Jackpot Machines at Nongstoin Market in West Khasi Hills District considering the literacy rate in the district and the per capital income. Therefore, it cannot be said that the reasons assigned in case of the petitioner while rejecting his representation is arbitrary and illegal, inasmuch as, there is reasonable restrictions for not allowing the exemptions sought for by the petitioner. But another question remains to be answered as to whether the Officer on Special Duty, Home (Police) Department is empowered under the Statute to pass the order dated 27.6.2008 impugned in the writ petition rejecting the re presentation dated 25.03.200 The answer would be "no". 12. It is well established in law that there cannot be an exercise of a power unless such power exists in law. If such power does not exist in law, the purported exercise of it would be an exercise of a non-existent power and would be void. A reading of the provisions of the entire Act would show that the Officer on Special Duty (Home) Department is not empowered to pass any order where an exemption of Section13(2) of the Act is sought for, moreso, when the representation dated 25.3.2008 is referable to the Under Secretary, Government of Meghalaya, Home (Police) Department and therefore, the impugned order dated 27.06.2008 passed by Officer on Special Duty, Home (Police) Department is not sustainable under the law and accordingly the impugned order dated 27.6.2008 passed by the Officer on Special Duty, Home (Police) Department is set aside and quashed. 13. Now the decisions referred to is required to be considered as to whether these decisions are applicable to the instant case. With regard to the decision in Jaisinghani (supra), there is no ambiguity in the proposition of law that discretion when conferred upon the executive authorities must be continued within clearly defined limits. It means sound discretion guided by law. It must be guided by law and it must not be arbitrary, vague and fanciful. The executive authorities in the case in hand assigned reasons for not exempting Section 13(2) of the Act and hence, the case is not applicable in the instant case. 14. It means sound discretion guided by law. It must be guided by law and it must not be arbitrary, vague and fanciful. The executive authorities in the case in hand assigned reasons for not exempting Section 13(2) of the Act and hence, the case is not applicable in the instant case. 14. Upon perusal of the decisions in K. Satyanarayana (supra) and Dr. K.R. Lakshmanan (supra), as referred, would show that the Apex Court held that the games of Rummy and Horse racing are not entirely of chance but winning depends substantially and preponderantly on skill whereas jackpot is not purely a game of skill but it is dependant on chances where, if the chances do not occur the players lose their money. From a players' point of view; the jackpot in any of its technological variations has a heavy preponderance of being a game of chance than skill and, therefore, the cases relied upon are also not applicable in the instant case. 15. In decisions referred to in Mohinder Singh Gill (supra), Khan Chand (supra) and Delhi Transport Corporation (supra), the Apex Court has held that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons mentioned therein. In the instant case reason has been assigned on three counts, viz., literacy rate and per capita income are low in West Khasi Hills District of Meghalaya, inasmuch as, jackpot game is a game of chance than a game of skill and therefore, the decision in Mohinder Singh Gill (supra), would not help the petitioner. In Khan Chand (supra), the Apex Court has held that the discretion vested may be looked into from two points viz. : (i) does it admit of the possibility of any real and substantial discrimination and (ii) does it impinge on a fundamental right guaranteed by the Constitution. Article 14 can be invoked only when both these conditions are satisfied. In the instant case exemption as sought for in West Khasi Hills District, Meghalaya has been turned down due to reason assigned which cannot be termed as substantial discrimination has been meted out to the petitioner though East Khasi Hills has been exempted from the purview of exemption under the Act and there is no infringement of Fundamental Right in regretting its inability in exempting Section 13(2) of the Act. In Delhi Transport Corporation (supra), the Apex Court has held that Rule of law posits that the power to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination. In view of the same, Delhi Transport Corporation (supra) case also would not be applicable in the instant case. 16. In the cases of Ugar Sugar (supra), Gaurav Ashwin (supra) and Chaudhuri Ran Beer Singh (supra), the Apex Court has dealt with the matter of judicial review and held that the scope of judicial review of Government policy is very limited, the Court cannot act as an appellate authority examining its correctness, suitability and appropriateness of a policy nor are Courts advisors to the executive on matters of policy which the executive is entitled to formulate, save and except when the policy violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. In the instant case, there is no violation of fundamental right of the petitioner and hence the judicial review cannot be made over a Government policy in exercise of power under Article 226 of the Constitution of India. 17. For the forgoing reasons and discussions and considering the case in its entirety and the orders passed on 27.6.2008 by the Officer on Special Duty, Home (Police) Department, this Court is of the opinion that the same cannot be sustained in absence of such power exists in law and therefore, the purported exercise of power by the Officer on Special Duty, Home (Police) Department on 27.6.2008 is void and the same is set aside and quashed. The matter is remitted back to the Secretary, Government of Meghalaya, Home (Police) Department to consider the representation dated 25.03.2008 of the petitioner (though there is no representation dated 27.3.2008 annexed with the writ petition and Annexure A-4 is dated 25.03.2008) and the petitioner is directed to submit a representation afresh alongwith the writ petition with the annexures appended thereto and the affidavit-in-opposition filed by the respondent Nos. 1 to 4 with a certified copy of this order within 6 (six) weeks from the date of this order and on receipt of the representation alongwith other documents as indicated above, the Secretary to the Government of Meghalaya, Home (Police) Department would dispose of his representation within 2 (two) months thereafter with a reasoned order, a copy of which shall be transmitted to the petitioner. In terms of the above observations and direction, the writ petition is disposed of. No costs.